Page 1 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017 V1.0

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1 Page 1 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

2 CONTENTS 1. Interpretation Operation of Document Amendment and Assignment The Developer The Bond and Security Insurance Confidentiality Intellectual Property Goods and Services Tax Construction of the Development Works Variations Defects Liability Certification of the Development Works Ownership of the Development Works Indemnity by Developer Notices Dispute Resolution Termination Force Majeure Ethical Conduct Page 2 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

3 OPERATIVE PROVISIONS 1. Interpretation DEVELOPMENT AGREEMENT STANDARD CONDITIONS 1.1 Definitions The following definitions apply in this document. Additional Infrastructure means the works described in Schedule 2 and Schedule 3 of the Formal Instrument which SA Water requires the Developer to provide and which are in excess of what would otherwise be required for the provision of reticulation services to allotments on the Land; Annexure A means the document described as Annexure A - Development Agreement Standard Conditions published by SA Water on its website located at on the date on which the Developer executes the Formal Instrument; Annexure B means the document described as Annexure B - Development Agreement Design and Construction Standards published by SA Water on its website located at on the date on which the Developer executes the Formal Instrument; Annexure C means the document described as Annexure C - Development Agreement Work Health Safety And Environmental And Heritage Standards published by SA Water on its website located at on the date on which the Developer executes the Formal Instrument; Annexure D means the document described as Annexure D - Development Agreement Role of Superintendent published by SA Water on its website located at on the date on which the Developer executes the Formal Instrument; Annexure E means the document described as Annexure E - Development Agreement Approved Unconditional Undertaking published by SA Water on its website located at on the date on which SA Water executes the Formal Instrument; ANTS GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth); Approved Contractor means a person who is approved by SA Water as complying with SA Water s Contractor Management System and is included in the Authorised Contractor List published by SA Water on its website located at on the date on which the Developer signs the Formal Instrument; Approved Designer means a consultant engineer approved by SA Water who is included in the Consultant Accreditation Rating List published by SA Water on its website located at on the date on which the Developer signs the Formal Instrument; Approved Products List means any of the following lists of products approved by SA Water for use in connection with its water and sewerage undertaking published by SA Water on its website located at on the date on which the Developer signs the Formal Instrument: TS Authorised Products for Water Systems; TS Authorised Products for Maintenance of Water & Sewer Systems; TS0502 Authorised Products for Gravity and Pressure Sewer Systems; TS Authorised Products for Packaged Sewer Pumping Stations; TS Authorised Products for Vacuum Sewer Systems; Page 3 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

4 TS Authorised Products for Pressure Sewer Systems; Approved Status means the status of being included as an Approved Designer on SA Water s Consultant Accreditation Rating List or an Approved Contractor on SA Water s Authorised Contractor List published by SA Water in its website located at on the date which the Developer signs the formal instrument; Bond means the deposit of cash or the lodgement of an unconditional undertaking approved by SA Water in accordance with clause 5.1 of this document in the amount stated in Item 8 of Schedule 1 of the Formal Instrument;; Business Days means any day that is not a Saturday, Sunday or public holiday in South Australia; Certificate of Practical Completion means the certificate issued by SA Water to the Developer in accordance with clause 13.1 of this document certifying that the Development Works or a Separable Part of the Development Works has reached Practical Completion; Change in Control means in relation to a body corporate or entity (the body) where: (i) an entity that Controls the body ceases to Control the body; or an entity that does not Control the body comes to Control the body, however no Change in Control occurs if: (iii) the entity that ceases to Control the body under paragraph (i) was, immediately before, a wholly-owned subsidiary of a body corporate that Controls the body; or (iv) the entity that comes into Control of the body under paragraph is, immediately afterwards, a wholly owned subsidiary of a body corporate that previously Controlled and continues to Control the body; Claim means in relation to any person, any claim, cause of action, proceeding, suit or demand made against the person concerned however it arises and whether it is present of future, fixed or unascertained, actual or contingent; Commencement Date means the date stated in Item 3 of Schedule 1 of the Formal Instrument; Contractor Management System means the electronic on-line system used by SA Water to demonstrate that its contractors have in place workplace management systems that are compliant with the Work Health Safety Act 2012 (SA) and operate to reduce the overall risk of workplace injury; Control means a power or control that is direct or indirect or is, or can be, exercised as a result of, in breach of, or by revocation of, trusts, relevant agreements and practices, or any of them, whether or not they are enforceable; Corporations Act means Corporations Act 2001 (Cth); "CPI" means the Consumer Price Index (All Groups) for Adelaide published from time to time by the Australian Bureau of Statistics or by the Commonwealth of Australia or by any other body authorised by the Commonwealth of Australia to do so; Customary Working Hours means ordinary hours of work fixed by or under any statute, ordinance or subordinate legislation or by any relevant award, determination, judgment or order of any competent court, board, commission or other industrial tribunal or by any relevant industrial agreement that is in force in the State of South Australia or, where hours of work are not so fixed, means the hours of work normally observed in the relevant trade or industry in the State of South Australia; Page 4 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

5 Date of Practical Completion of the Development Works means the date specified in the Certificate of Practical Completion as being the date on which Practical Completion of the Development Works was achieved; Date of Practical Completion of a Separable Part of the Development Works means the date specified in the Certificate of Practical Completion of a Separable Part of the Development Works as being the date on which Practical Completion of the Separable Part was achieved; Defect means any omission, defect, imperfection, shrinkage or any other fault in the Development Works which becomes apparent during the Defects Liability Period under proper use of the Development Works; Defects Liability Period for the Works means the period in which the Developer is liable to rectify defects in the Development Works as described in clause 12.1 of this document; Defects Rectification Notice means a written notice served by SA Water on the Developer which notice specifies the nature of the defect and the time within which the defect must be rectified; Deliverable means all materials developed or supplied by the Developer in carrying out the Development Works; Design Documents means the drawings specifications and other information, samples, models, patterns and the like created by the Developer for the construction of the Development Works; Design and Construction Requirements means the design and construction requirements set out in the standards, codes and guidelines listed in Annexure B and the design and construction requirements for the Development Works, if any, specified by SA Water in Schedule 3 Special Conditions of the Formal Instrument; Developer means the person described in Item 1 of Schedule 1 of the Formal Instrument; Developer s Contribution means the sum payable by the Developer to SA Water being the amount stated in Item 10 of Schedule 1 of the Formal Instrument together with any additional amount specified by SA Water in Schedule 3 Special Conditions of the Formal Instrument as being payable by the Developer to SA Water for the Additional Infrastructure or is required to be paid by the Developer to SA Water by the operation of clause 2.4 (i) or clause 4.7 of this document;; Developer s Superintendent means the person appointed by the Developer and approved by SA Water to carry out the Role of Superintendent and includes the person appointed by the Developer and approved by SA Water as the Superintendent s Representative;; Development A g r e e m e n t means t h e agreement regarding the Development Works entered into by the Developer and SA Water by signing the Formal Instrument and includes the schedules and annexures to the Formal Instrument; Development Works means the works described in Schedule 2, Development Works of the Formal Instrument which are to be designed and constructed in accordance with the Development Agreement for the supply of Water, Recycled Water (if applicable), sewers and sewage related assets and Wastewater infrastructure to service the Land and includes the Additional Infrastructure, all variations, remedial work and work done to rectify defects during the Defects Liability Period.; Page 5 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

6 Direction includes agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement; Dispute Representative has the meaning attributed to it in clause 17.1 of this document; Extended Period means the period of eighteen (18) months beginning on the day immediately following the last day of the Initial Period and ending eighteen (18) months after that day; Final Certificate means the certificate issued by SA Water to the Developer in accordance with clause 13.3 of this document; Force Majeure Event means any matter outside the reasonable control of a party, including: (i) fire, lightning strike, explosion, flood, earthquake, landslide, tsunami or other natural disaster; ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel; (iii) riot, civil commotion, malicious damage, sabotage, war (whether declared or not), Act of Terrorism or revolution; or (iv) order of a court, tribunal or Government Agency; but only to the extent that the event or circumstance is: (v) not within the reasonable control of the affected party or a related body corporate; and (vi) not reasonably able to be avoided, remedied or abated by the affected party by the exercise of reasonable diligence or effort; Formal Instrument means the document so described and executed by the Developer and SA Water as an agreement; GST means the tax imposed by the ANTS GST Act; Initial Period means the period of eighteen (18) months commencing on the Commencement Date and ending on the that date being eighteen (18) months after that date; Insolvency Administration means, for a person, being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event; Intellectual Property Rights means all intellectual property rights, including: (i) patents, plant breeders rights, copyright, rights in circuit layouts, registered designs, trademarks, know-how and any right to have Confidential Information kept confidential; and any application or right to apply for registration of any of the rights referred to in paragraph (i), Page 6 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

7 and for the avoidance of doubt excludes moral rights and performers rights; Land means the land specified in Item 1 of the Schedule; Law shall mean and include all present and future legislation (both State and Federal) and all amendments to them and re-enactments of them and all regulations, by-laws and orders made pursuant to them; Liability means in relation to a person any liability 9or obligation however it arises and whether it is present or future, fixed or unascertained, actual or contingent and including any liability for consequential or indirect loss, economic loss or loss of profits; Ordinary working days means ordinary days of work fixed by or under any statute, ordinance or subordinate legislation or by any relevant award, determination, judgment or order of any competent court, board, commission or other industrial tribunal or by any relevant industrial or enterprise agreement that is in force in the State of South Australia or, where days of work are not so fixed, means the days of work normally observed in the relevant trade or industry in the State of South Australia but does not include a day that is a public holiday in the State of South Australia; Payable variation means a variation determined by SA Water to be a payable variation in accordance with clause 11.2 of this document; Practical Completion means that stage in the execution of the Development Works when: (i) the Development Works or a Separable Part of the Development Works, as the case may be, has been completed in accordance with the Development Agreement and those tests which are required by SA Water in accordance with clause of this document to be carried out and passed before the Development Works or the Separable Part of the Development Works, as the case may be, are handed over to SA Water have been carried out and passed, and (iii) the Development Works or Separable Part of the Development Works has successfully completed all necessary commissioning activities and obtained all necessary certifications (iv) all documents including As Constructed Drawings and other information required under this document which, in the opinion of SA Water, are essential for the use, operation and maintenance of the Development Works have been supplied to SA Water by the Developer, and (v) all requirements specified in the Design and Construction Requirements as a prerequisite for the issue of the Certificate of Practical Completion have been met, and (vi) all training of SA Water staff required for the ongoing operation and maintenance of the Development Works or Separable Part of the Development Works has been carried out by the Developer; (vii) all major defects have been rectified and a timetable for completing outstanding minor defects has been agreed with SA Water; (viii) all debts due from the Developer to SA Water have been paid, and (ix) the Security has been lodged by the Developer with SA Water in accordance with clause 5.2 of this document; Recycled Water means Wastewater which has been treated so as to be usable by SA Water customers; Remedial work means work carried out by the Developer to rectify the defects specified in a Defects Rectification Notice.; Role of Superintendent means the construction supervisory role described in Annexure D; Page 7 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

8 SA Water means South Australian Water Corporation ABN , a body corporate by virtue of South Australian Water Corporation Act 1994 (SA) and includes its successors and assigns; SA Water s Contribution means the sum, if any, payable by SA Water to the Developer for the cost of the Additional Infrastructure in the amount specified in Schedule 3 of the Formal Instrument; Page 8 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

9 SA Water Safety Standards means the safety standards set out in Annexure C; Security means the deposit of cash or lodgement of an unconditional undertaking approved by SA Water in accordance with clause 5.2 of this document in the amount stated in Item 9 of Schedule 1 of the Formal Instrument; Separable Part of the Development Works means any portion of the Development Works determined to be a Separable Part by SA Water in accordance with clause 13.2 of this document; Sewage: includes any form of waste that may appropriately be removed or dealt with by the collection, storage and treatment or conveyance through the use of a reticulated system; Sewer means any infrastructure that is, or is to be, used for: the collection or storage of sewage; the conveyance or reticulation of sewage; or the treatment of sewage including any outfall pipe or other work that stores or conveys water leaving infrastructure used for the treatment of sewage; Tax Invoice has the meaning attributed in the ANTS GST Act; and Taxable Supply has the meaning attributed in the ANTS GST Act. Wastewater means water collected and transported through sewers and includes water from domestic, commercial and industrial sources including food processing factories; Water includes rainwater, stormwater, desalinated water, recycled water and water that may include any material or impurities but does not include sewage. 1.2 Rules for interpreting this document The following rules apply in the interpretation of this document, except where the context makes it clear that a rule is not intended to apply. a reference to a document (including this document) or to an agreement, or a provision of a document or agreement, is a reference to the document, agreement or provision as amended, supplemented replaced or novated; a reference to any legislation or to any provision of any legislation includes: (i) all legislation, regulations, proclamations, ordinances, by-laws and instruments issued under that legislation or provision; and any modification, consolidation, amendment, re-enactment or substitution of that legislation or provision; a word importing: (i) (iii) the singular includes the plural; the plural includes the singular; and a gender includes every other gender; (d) (e) words denoting individuals include corporations, unincorporated associations, partnerships, trusts and joint ventures; a reference to a party includes that party s administrators, successors and permitted assigns; Page 9 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

10 (f) (g) (h) (i) (j) (j) (k) (l) (m) (n) if any act pursuant to this document would otherwise be required to be done on a day which is not a Business Day then that act may be done on the next Business Day; where a word or phrase is given a defined meaning, any other part of speech or grammatical form in respect of that word or phrase has a corresponding meaning; a reference to two or more persons is a reference to those persons jointly and severally; a reference to a clause is a reference to a clause of this document; a reference to a schedule is a reference to a schedule of the Formal Instrument; a reference to a clause number is a reference to all of its sub-clauses; a reference to dollars is to Australian dollars; where general words are associated with specific words which define a class, the general words are not limited by reference to that class; the clause headings are for convenient reference only and they do not determine the meaning of a clause; the word or is not exclusive; and (o) where there is any conflict between a provision of this document and a provision of a Schedule, the provision in the Schedule shall prevail. 1.3 Multiple parties If a party to the Development Agreement is made up of more than one person, or a term is used in this document to refer to more than one party, then unless otherwise specified in this document: an obligation of those persons is joint and several; a right of those persons is held by each of them severally; and any other reference to that party or term is a reference to each of those persons separately so that (for example) a representation, warranty or undertaking is given by each of them separately. Page 10 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

11 2. Operation of Document 2.1 Commencement of Development Agreement The rights and obligations of the parties conferred or imposed by the Development Agreement begin on the date on which the last of the parties to do so, executes the Formal Instrument. 2.2 SA Water approval Subject to clauses 2.3 and 2.4 of this document SA Water approves the Developer carrying out the Development Works on the Land in accordance with the Development Agreement. 2.3 Review by SA Water If the Developer fails to substantially commence the Development Works within six (6) months of the Commencement Date SA Water may, in its sole discretion, review the operation of the Development Agreement and in the course of any such review may amend, supplement or replace all or any of the following: (i) the location and the description of the Development Works; the location and the description of the Additional Infrastructure; (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) the Design Requirements; the Construction Requirements; the amount of the Bond; the amount of the Security; the amount of SA Water s Contribution; the amount of the Developer s Contribution; the Date for Practical Completion of the Development Works; and the Date for Practical Completion of the Additional Infrastructure, and in addition the costs incurred by SA Water in carrying out the review will be a debt due and payable by the Developer to SA Water. 2.4 Termination or extension If the Developer fails to complete the Development Works within the Initial Period, SA Water may, in its sole discretion: (i) subject to payment by the Developer of any further or revised fees, charges, or contributions assessed by SA Water, agree to extend the operation of the Development Agreement for the Extended Period on the same terms as are contained in this document; (iii) terminate the Development Agreement; or terminate the Development Agreement and step in to complete so much of the Development works as is required to provide water (including recycled water) and sewerage services to customers other than the Developer. Page 11 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

12 If SA Water agrees to extend the operation of the Development Agreement in accordance with clause 2.4 (i) the further revised fees, charges and contributions payable shall be the Developers Contribution updated to reflect: (i) any changes as have been published by SA Water in accordance with section 36 on the Water Industry Act 2012 and are in effect at the date the extension is agreed, and any changes in the cost of constructing the Additional Works; If SA Water terminates the Development Agreement under clause 2.4 or (iii), and the Developer subsequently wishes to proceed with the Development Works, the Developer must: (i) (iii) obtain the consent of SA Water; enter into a further development agreement with SA Water; and pay to SA Water any further or revised fees, charges and contributions assessed by SA Water. (d) (e) Where SA Water exercises its rights under clause 2.4 (iii) above, the reasonable costs incurred by SA Water in completing works, less the amount of SA Water s Contribution and any other amounts that SA Water has agreed to reimburse to the Developer, will be a debt due and payable by the Developer to SA Water. Termination of this Agreement is without prejudice to any rights or liabilities of the parties accruing to the date of termination. Page 12 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

13 3. Amendment and Assignment 3.1 Amendment This document can only be amended or replaced by: (i) 3.2 Assignment an inconsistent provision included in Schedule 3 Special Conditions of the Formal Instrument and then only to the extent of the inconsistency; or another document signed by the parties that expressly states that it is amending the Development Agreement Standard Conditions set out in this document. The Developer may not assign, transfer, dispose of, declare a trust over or otherwise create an interest in its rights and obligations set out in this document without the prior written consent of SA Water. The Developer acknowledges that SA Water has entered into the Development Agreement in reliance on the expertise and capability of the Developer and may withhold its consent under clause 3.2 in its absolute discretion. Page 13 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

14 4. The Developer 4.1 Overall responsibility for Development Works The Developer must carry out and complete the Development Works in accordance with the Development Agreement. 4.2 Work Health and Safety The Developer acknowledges that in carrying out and completing the Development Works the Developer is acting as a person conducting a business or undertaking for the purposes of the Work Health and Safety Act 2012 (SA) and, without limiting the operation of clause 4.6(d) of this document, agrees to comply with, and to ensure that the Approved Designer, Approved Contractor and Superintendent comply with, the provisions of the Work Health and Safety Act 2012 (SA) and any other applicable legislation including the legislation listed under the heading Work Health and Safety in Annexure C. 4.3 Developer s warranties The Developer must ensure, and warrants to SA Water, that: the Developer will carry out and complete the Development Works and will have the primary responsibility for all obligations arising out of or in connection with the design and construction of the Development Works in accordance with the Development Agreement and will ensure that the Approved Designer and the Approved Contractor respectively design and construct the Development Works in accordance with the Development Agreement; in connection with the completion of the Development Works, it will only engage an Approved Designer and an Approved Contractor; that the Approved Designer and the Approved Contractor: (i) (iii) at all times will be suitably qualified and experienced, and will exercise due skill, care and diligence in the carrying out and completion of the Development Works; effect and maintain the insurances, and observe the general requirements regarding insurance, set out respectively in clause 6 of this document; and will carry out their respective obligations relating to the Development Works in accordance with the Development Agreement; (d) (e) the Developer will ensure that the Approved Designer and Approved Contractor engaged by it are familiar with all current Laws affecting the Development Works, or which may affect the Development Works, and that there is nothing in the Design and Construction Requirements which is inconsistent with, or at variance with, any current Laws; the Developer will ensure that the Approved Designer and Approved Contractor engaged by it examine and carefully check any Design and Construction Requirements and that such Design and Construction Requirements: (i) are consistent with and do, or will, conform with and meet all Laws; and do not contain any material discrepancies, ambiguities or inconsistencies; Page 14 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

15 (f) (g) the Approved Designer or the Developers Superintendent (who is accredited to undertake audit activity) is appointed to undertake a reasonable program of audits of the construction of the Development Works by the Approved Contractor. Without limitation, these audits must cover the management of work health and safety as well as the environmental and quality performance of the Approved Contractor; and all materials for the Development Works: (i) will be provided at the Developer's cost; and are either materials specified in the Approved Products List or if they are not so specified, have been approved by SA Water. 4.4 Warranties unaffected The Developer acknowledges that the warranties in clause 4.3 will remain unaffected notwithstanding: any: (i) (iii) receipt or review of; comment on; or acceptance of, the Design Documents by SA Water; the provision of any information and data concerning the Development by or on behalf of SA Water; or the granting by SA Water of Approved Status to the Approved Designer or the Approved Contractor. 4.5 No warranty by SA Water Information made available to the Developer in the documents forming part of the Development Agreement or prior to, or after the Development Works application, will not constitute a warranty or representation of any kind by SA Water, and the Developer acknowledges and agrees that such information will be checked and verified by it, the Approved Designer and the Approved Contractor. The Developer will not be entitled to any moneys or extension of the Initial Period on account of any alleged statement, warranty or representation with respect to the information referred to in clause 4.4 which may not prove correct. No warranty, express or implied, is given by SA Water that the Design Requirements or Construction Requirements show all information which is or may be necessary or incidental to the Development Works. 4.6 Obligations in relation to the Development Works The Developer must: before commencing the Development Works, satisfy all applicable requirements of the Development Act 1993 (SA); Page 15 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

16 (d) (e) before commencing the Development Works, at the Developer's cost, obtain all necessary permits, consents and other authorisations required by Law for the Development Works to proceed; not commence the Development Works until the Developer has provided to SA Water a copy of the Formal Instrument duly executed by or on behalf of the Developer and the Developer has paid to SA Water the amount specified in Item 10 of Schedule 1 of the Formal Instrument; without limiting clauses 4.6 and 4.6 at all times meet the requirements of all relevant Law relating to the commencement and completion of the Development Works including the legislation listed under the heading Environment and Heritage Protection in Annexure C;; at any time upon receipt of a written request from SA Water, provide SA Water with written evidence that the requirements of paragraphs to have been met; and (f) at any time where requested by SA Water, coordinate the location and design of the proposed Development Works with any of SA Water or any other authority s existing or proposed works, operations or services. 4.7 Development Works costs The Developer must: (i) meet the full cost of designing, constructing, project-managing, supervising, auditing, surveying and asset recording all of the Development Works (except for any amounts which SA Water expressly agrees to pay the Developer, as set out in Schedule 3 of the Formal Instrument); and pay to SA Water the Developer s Contribution together with such other fees, charges and contributions relating to the Development Works as are published by SA Water in accordance with section 36 of the Water Industry Act 2012 and are in effect at the date the Developer commences the Development Works. The fees, charges and contributions referred to in clause 4.7 must be paid by the Developer to SA Water within sixty (60) Days after the Developer has been invoiced by SA Water for them. SA Water s liability to make payment to the Developer for the costs of the Development Works is limited to the sum of the following: (i) the amount of one dollar ($1.00) payable in accordance with clause 1.2 of the Formal Instrument; the amount, if any, stated in Schedule 3 of the Formal Instrument as being payable by SA Water; and the value of a payable variation, if any, agreed or determined in accordance with clause 11.2 of this document. 4.8 SA Water right to enter Land Page 16 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

17 The Developer agrees to allow SA Water its employees and authorised agents to have access to the Land in order to inspect the Development Works at any time during their construction. SA Water must ensure that its employees and authorised agents comply with the Developer s workplace health and safety procedures that apply to the Land while they are on the Land to inspect the Development Works during their construction. 4.9 Taking up residence on the Land The Developer must ensure that no person takes up temporary or permanent residence on any part of the Land prior to a Certificate of Practical Completion for the Development Works. being issued by SA Water in accordance with clause 13.1 of this document. Page 17 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

18 5. The Bond and Security 5.1 Bond If the Developer wishes to settle or complete the sale of allotments on the Land at a time when the Development Works have not reached Practical Completion, the Developer by notice in writing may request SA Water to allow clearance of the allotments on the Land. Within ten (10) Business Days of making a request in accordance with clause 5.1 of this document the Developer must: (i) (iii) provide the Bond to SA Water for the purpose of ensuring that the Development Works are completed by the Developer in accordance with the requirements of the Development Agreement; instruct the Developer s surveyor to lodge with the Development Assessment Commission the final plan of land division for the allotments on the Land; and notify SA Water in writing that it has carried out the actions required by paragraphs (i) and of this clause. (d) (e) (f) (g) The Bond may be provided by the Developer in the form of cash or an approved unconditional undertaking in the form of a bank guarantee or insurance bond issued by an approved financial institution or insurance company. SA Water shall have the absolute discretion to approve or to disapprove of the form of an unconditional undertaking and the financial institution or insurance company issuing it. The form of unconditional undertaking set out in Annexure E is approved by SA Water. Within five (5) Business Days after receiving the Bond from the Developer and being satisfied that the Developer has complied with clause 5.1 of this document SA Water will advise the Development Assessment Commission that SA Water s conditions in relation to the final plan of land division lodged by the Developer in relation to the Land have been met. By notice in writing to SA Water given at any time after a substantial proportion of the Development Works has been completed and prior to the Development Works reaching Practical Completion the Developer may make up to three (3) requests for SA Water to reduce the amount of the Bond as work on the Development Works progresses. SA Water will consider any such request and assess the value of the Development Works that have been completed up to the date of the request. In its absolute discretion SA Water may reduce the amount of the Bond having regard to the reduced value of the Development Works that are yet to be completed. Within five (5) Business Days of receiving from the Developer the written request. to reduce the Bond SA Water will: Page 18 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

19 (i) if it has decided that there has been a substantial reduction in the value of the Development Works that are yet to be completed, notify the Developer in writing of its decision and repay or release the balance of the Bond to the Developer; or if it has decided that there has not been a substantial reduction in the value of the Development Works that are yet to be completed, notify the Developer in writing that it will not make any reduction in the Bond. (h) At Practical Completion of the Development Works SA Water will retain as the Security an amount of the Bond equal to the Security and within five (5) Business Days after SA Water has issued a Certificate of Practical Completion for the Development Works SA Water will notify the Developer in writing of its intention to retain this amount as Security and repay or release to the Developer the balance of the Bond remaining after any deduction made by SA Water in accordance with clause 5.3 of this document. (i) 5.2 The Security Nothing in this clause 5.1 operates to limit the Developer s obligations set out in clause 4.9 of this document. The Security is for the purpose of ensuring that any defects in the Development Works are rectified by the Developer during the Defects Liability Period in accordance with the requirements of the Development Agreement. (d) (e) (f) (g) (h) The Security may be provided by the Developer in the form of cash or an approved unconditional undertaking in the form of a bank guarantee or insurance bond issued by an approved financial institution or insurance company. SA Water shall have the absolute discretion to approve or to disapprove of the form of an unconditional undertaking and the financial institution or insurance company issuing it. The form of unconditional undertaking set out in Annexure F is approved by SA Water. The Developer must provide the Security to SA Water when the Development Works, or a Separable Part of the Development Works, have been brought to a stage ready for Practical Completion. As between the Developer and SA Water, Practical Completion of the Development Works shall not take place unless and until the Security has been provided by the Developer to SA Water. Notwithstanding any other provision of the Development Agreement, SA Water is not obliged to release and repay the Bond to the Developer unless and until the Security has been provided by the Developer to SA Water. The Security, or the balance of the Security remaining after any deduction made by SA Water in accordance with clause 5.3 of this document, must be released to the Page 19 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

20 Developer within five (5) Business Days after the issue of a Final Certificate for the Development Works. 5.3 Recourse to the Bond and Security Without limiting SA Water s rights under any other provision of the Development Agreement, any debt or debts due from the Developer to SA Water whether by operation of the Development Agreement or otherwise, may be deducted by SA Water from the Bond and the Security, or either of them, and retained by SA Water. (d) If the Security does not consist of money SA Water may convert the Security into money in order to exercise its rights in clause 5.3 of this document. SA Water is not obliged to give the Developer prior notice of its intention to convert the Security into money and is not liable to the Developer for any loss or expense that the Developer may suffer or incur as a result of the conversion. SA Water shall be entitled to recover from the Developer any debt or debts due from the Developer to SA Water that have not been satisfied out of the Bond and the Security, or either of them. Nothing in this clause operates to limit or prevent SA Water s rights to recover damages from the Developer for breaches of the Development Agreement or any other remedy available to it. Page 20 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

21 6. Insurance 6.1 Public liability insurance Before the Developer commences any of the Development Works, the Developer must arrange effect and maintain a public liability policy of insurance and ensure that each contractor involved in carrying out the Development Works effects and maintains a public liability policy of insurance which must be in joint names of SA Water, the Developer, the Approved Contractor and all subcontractors employed from time to time by any of those parties in relation to the Development Works for their respective rights and interests and covers their liabilities to third parties, including the Developer s liability to SA Water or any third party for loss of or damage to property death of or injury to any person (other than liability for entitlements provided to workers by the Return to Work Act 2014 (SA) or which is otherwise required by law to be insured under a workers compensation policy of insurance) and is for an amount in respect of any one occurrence not less than $20 million. The Policy of insurance referred to in paragraph must be maintained until the Final Certificate is issued in accordance with clause 1433 of this document. The Developer must not, and must ensure that the Approved Contractor does not, do any act or permit or suffer any circumstances by which the policy of insurance taken out under this clause 6.1 may at any time become void or voidable and the Developer must at all times at its own expense comply with the conditions of such policy so as to prevent its invalidation. The Developer hereby indemnifies SA Water against any losses, damages, costs or expenses arising out of their respective default under this paragraph. 6.2 Professional indemnity insurance The Developer must ensure that before the Approved Designer commences any work in connection with the design of the Development Works, the Approved Designer has arranged professional indemnity insurance with a limit of indemnity not less than $5 million which covers liability arising from a breach of professional duty, whether owed in contract or otherwise caused by any negligent act or omission of the Approved Designer, its employees, subcontractors, contractors or agents. The Policy of insurance referred to in clause 6.2 must be maintained until the expiration of three (3) years after the Certificate of Practical Completion is issued. The Developer must ensure that the Approved Designer does not do any act or permit or suffer any circumstances by which the policy of insurance taken out under this clause 6.2 may at any time become void or voidable and the Approved Designer must at all times at its own expense comply with the conditions of such policy so as to prevent its invalidation or prejudice rights of the insured under such policy. The Developer hereby indemnifies SA Water against any losses, damages, costs or expenses directly attributable to the Approved Designer s default under this paragraph. Page 21 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

22 6.3 Terms of insurance The Developer must ensure that the policies of insurance required under this clause 6 provide that the insurer waives all rights, remedies or relief to which it might become entitled by way of subrogation against SA Water. The effecting and keeping in force of any insurance will not in any way limit the obligations or responsibilities of the Developer under this document or at Law. 6.4 Insurance of employees The Developer must ensure that the Approved Designer and Approved Contractor and their respective subcontractors each are a registered or self-insured employer in accordance with section 128 and 129 respectively of the Return to Work Act 2014 (SA) or hold workers compensation insurance as may otherwise be required by Law until the expiration of 2 years after the date of the Certificate of Completion. The Developer indemnifies SA Water against any loss it may suffer as a consequence of any failure of the Approved Designer, the Approved Contractor or any of their respective subcontractors to become a registered or self-insured employer in accordance with section 128 and 129 respectively of the Return to Work Act 2014 (SA) or obtain workers compensation insurance in accordance with this clause 6.4. Page 22 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

23 7. Confidentiality 7.1 Confidentiality obligation The Developer must keep confidential and must not allow, make or cause any public announcement or other disclosure of or in relation to any information relating to the conduct and assessment of, and decision making in relation to, any tender conducted by the Developer for works relating to the Development Works that are required to be undertaken by SA Water and that the Developer has agreed to undertake on behalf of SA Water. 7.2 Exceptions The Developer s obligation under clause 7.1 not to make any disclosure does not apply to disclosures to the extent they are: (d) required by law; required by the listing rules of Australian Stock Exchange Limited; required to enable the party to perform its obligations or making or defending any claim under this document; or required to be disclosed under this document, provided that before any such disclosure, the disclosing party notifies the other party in writing of the information it proposes to disclose and gives details of the reasons for such disclosure. Page 23 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

24 8. Intellectual Property 8.1 Intellectual Property in Deliverables All Intellectual Property in the Deliverables will be owned absolutely by the party creating the Deliverable and vest in that party immediately on creation by that party. To the extent that SA Water may at any time acquire any right, title or interest in any Intellectual Property in the Deliverables, SA Water, by this document, assigns to the relevant party all such right, title and interest. 8.2 License The Developer grants SA Water a non exclusive, perpetual, non transferable, royalty free and worldwide license under the Intellectual Property in the Deliverables for whatever purpose required by SA Water and must ensure that each of the Approved Designer and the Approved Contractor grants to SA Water a license of their respective Intellectual Property in the Deliverables in similar terms. 8.3 No infringement The Developer warrants to the best of its knowledge and belief after making all reasonable enquiries that SA Water s use of the Deliverables will not infringe any Intellectual Property rights of any person nor give rise to any liability to make royalty or other payments to any person. Page 24 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

25 9. Goods and Services Tax 9.1 GST Price Adjustment If the Developer is obliged to pay a Goods and Services Tax (GST) in respect of a taxable supply or taxable importation under this Agreement then the price for the goods &/or services supplied under this Agreement must be adjusted so that; the Developer s net revenue under this Development Agreement, taking into account the Developer s liability for GST, any input tax credits, and benefits from tax reform should not, by reason only of the imposition of GST, be less than it otherwise would be; and any increase in payments due from SA Water as a result of the imposition of GST should be reduced to the extent that the Developer is able to benefit from input cost reductions as a result of tax reforms associated with the introduction of GST. 9.2 Tax Invoice If the Developer is liable to pay GST in respect of any taxable supply or taxable importation to SA Water under this document, the Developer must deliver to SA Water s Representative a tax invoice in respect of a payment under this document at the time when payment is made as a condition of such payment. Page 25 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017

26 10. Construction of the Development Works 10.1 Developer Supervision of the Works The Developer must ensure that a person competent to do so and acceptable to SA Water is appointed to carry out the Role of Superintendent and personally supervises the Development Works to ensure that they are constructed in accordance with the Development Agreement. This person may be appointed by the Developer. If the Developer s Superintendent is to change during the construction of the Development Works, the Developer must notify SA Water in writing of the proposed change before it occurs and to provide SA Water with sufficient information to enable SA Water to determine whether the.person to be appointed Developer s Superintendent is a fit and proper and competent person to perform the Role of Superintendent. SA Water may withhold its approval of the person to be appointed Developer s Superintendent in its absolute discretion. Any matter within the knowledge of the Developer s Superintendent will be deemed to be within the knowledge of the Developer. (e) (f) Any notice given to the Developer s Superintendent will be deemed to be notice given to the Developer. If the Developer or the Developer s Superintendent is absent from the Land, SA Water may take any action which it considers necessary to prevent loss of or damage to the whole or any part of the Development Works or to any property or to prevent personal injury to any person on the Land. The cost of any action taken by SA Water is, at the discretion of SA Water, a debt due from the Developer to SA Water. (g) Any action taken by SA Water under this clause does not relieve the Developer of any of its liabilities or obligations under the Development Agreement SA Water s Representative 10.3 Directions SA Water, by notice in writing to the Developer, may appoint a person to act as SA Water s representative in relation to the Development Works and may change that appointment from time to time. The person notified to the Developer as SA Water s representative may exercise the powers conferred on SA Water by the Development Agreement during the period of their appointment. The Development Works must be executed in accordance with the Development Agreement and in accordance with any directions given by SA Water in relation to the Development Works. Any direction given to the Developer by SA Water may be given either orally or in writing. When any such direction is given orally, SA Water must, as soon as practicable after the direction is so given, confirm it in writing addressed to and served on the Developer in accordance with the Development Agreement. Any direction, Page 26 of 40 Development Agreement Annexure A Standard Conditions 1 February 2017